A Proactive Approach to Resolving a Longstanding Debate

About forty skilled Central and South American workers from Ecuador, Peru, Columbia and Costa Rica came to British Columbia, Canada as temporary foreign workers (TFWs) in 2006. This story incited Labourers’ International Union of North America (LiUNA) call for reforms to Canada’s TFW program (TFWP) and the International Mobility Program (IMP). LiUNA, a powerful voice within the construction industry with over half a million members – 110,000 of whom are in Canada – has been the only Canadian union to address the issue.
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In 2005, Mark Olsen, LiUNA’s Western Canada manager, explains that he had seven meetings with Italian tunnel boring company SELI Canada and SNC-Lavalin from Quebec about a joint venture on a $2.1 billion tunnel project in Vancouver, British Columbia when Mark was the Business Manager of LiUNA Local 1611 in BC.

This project entailed the construction of an underground transportation system from Vancouver’s downtown to the airport. This was Canada’s first light rail transit (LRT) public-private partnership (P3) says Mark. “That’s what unions hope to do – to have meetings and put together a project labour agreement so our union would drive (bore or blast) the tunnel.”

After the sixth meeting, it appeared that a project agreement was nearing completion, but then, things took an unexpected turn. The Conservative government approved bringing in TFWs as the contractor had stated that LiUNA’s members “would bring no value to the project,” says Mark. This statement was incomprehensible to him since LiUNA had the qualified and skilled workers to complete the Canada Line, as it became to be known after construction.

When the TFWs came to Vancouver in April 2006, LiUNA continued to monitor the tunnel project. It then moved “to organize [the workers] and represent them,” states Mark. “We were successful in certifying the company [and] having all the workers sign cards in June 2006.”

It was by talking to the workers through interpreters and organizers that LiUNA discovered something. “These workers were actually paid as low as $3.47 per hour,” from spring of 2006 to the completion of the project in the spring of 2008, says Mark. British Columbia’s minimum wage at the time was $8 per hour.

Richard Gilbert, a journalist and economist, was commissioned by LiUNA to produce four white papers on the TFWP and IMP issue. “The people that were earning this low wage were probably the most skilled workers on the project,” he says. “There was a huge disparity in the pay that was being received by the foreign workers and the local workers and Canadians.” He also notes that there were additional issues regarding other European foreign workers who were treated differently, received all entitled benefits and were paid the proper wage.

“They knew that they could pay them much less than the Canadian market and keep them busy,” Mark says. These workers had just completed a tunnel in Chile at a wage of $1.25 per hour, so were unwittingly elated to be earning almost $3.50 per hour. “We had no doubt, right off the bat, that these would be skilled tunnellers,” says Mark. “Just as skilled as LiUNA’s members.”

LiUNA represented these workers by submitting multiple applications to British Columbia’s Labour Relations Board which resulted in the union having to go to court against the board. “The court found the board was biased against the union,” says Mark. In August 2006, LiUNA filed a complaint with British Columbia’s Human Rights Commission, “to represent the workers to show that there was discrimination based on place of origin,” states Mark.

LiUNA was awarded over two million dollars, and although not certain, Mark believes that the award may be, “the largest in Canadian history.” He also explains that international construction companies want to, “bring [foreign workers] to Canada and pay them whatever they pay them on other jobs around the world. This is not right and may be illegal.”

These court proceedings cost LiUNA about half a million dollars. “The union did not take one dime out of the human rights award that the companies had to pay,” he says. LiUNA Local 1611’s President, along with the union’s lawyer and an interpreter, travelled to Costa Rica four years after the workers had returned home to, “meet with all the workers and hand out cheques… It really did change their lives.”

Jim Sinclair, the former President of the British Columbia Federation of Labour and author of the recently published book We Build BC – History of the BC Building Trades adds that this TFW injustice essentially highlighted how exploited the TFWP was becoming. “The program, at that point, and I think continues to, in many respects, fail Canadians and the people coming to Canada,” he says.

Once considered sister programs, the TFWP and IMP were split into two separate programs by the Conservatives in 2014. The TFWP is for low-skilled workers, and the IMP is aimed at those with higher skills. The TFWP requires a labour market impact assessment (LMIA), a document indicating an employer’s need to hire a foreign worker when a Canadian worker is not available. With the IMP this is not a requirement.

“Really the word skilled is a bit of a misnomer,” says Mark. The difference between being considered low skilled and high skilled is, “actually based on the wage rate the company claims it’s going to pay, not on the skill.” According to Mark, the IMP is, “supposed to just cover higher skilled, meaning higher paid,” for professionals such as engineers and IT individuals.

However, a problem arises with the IMP. “Companies are saying we will pay over the median wage, and because of that, all of a sudden, it’s higher skilled,” continues Mark. In the construction industry, this usually puts workers in the high skilled category. “So [companies] are able to do that if they have an international workforce… Then there’s no LMIA process at all.”

Richard agrees that employers were using the IMP to, “circumvent the more stringent requirements.” The federal government indicated that it would be diligent in addressing the issue, mostly due to public outcry and LiUNA’s efforts to make this concern public.

“There’s still talk about the TFWP. No one is talking about the IMP, even though the IMP is the bigger program and handles far more people,” Richard says. “Even when it was under the TFWP, it represented probably seventy to eighty percent of all the migrant workers coming into Canada.”

He explains that the federal government ignored the IMP and construction industry altogether during a parliamentary committee as did an Auditor General’s report which, “didn’t dig into the numbers too deeply. I think that’s for a reason.”

A recent study by Build Force Canada instead discussed labour shortages and the justification for foreign workers. This study, “more or less promoted the employers’ perspective which is that there is no real problem with the [TFWP],” continues Richard. This suggests that what is being proposed is quicker processing of applications and, “making it easier for employers to access foreign workers,” says Richard. “They haven’t dealt with any of the issues that we’ve been raising over the last so many years.”

Jim believes that both the TFWP and the IMP have to be seen, “in the context of what’s going on in the construction industry overall. There’s always been an underground economy in construction. It’s been a very difficult thing to deal with, and most governments have turned the other way and ignored it.” Since TFWs were introduced as a choice for employers, “We’ve seen the growth of that [underground] economy very dramatically.”

After the two years of a temporary foreign worker permit ends, these workers are supposed to leave Canada, but most remain and continue to work here. There is also no system in place to determine if these temporary workers leave. “So they become, in a classical sense, an illegal worker in Canada with absolutely no rights at all,” continues Jim. In the past, TFWs were academics, artists, and musicians. “That’s what the TFWP was used for until they [changed] the whole thing to bring in more and more workers who were no longer in those categories.”

“More people were coming to Canada as TFWs than were coming through the immigration streams for a number of years,” adds Jim. “Employers stopped looking for Canadians to hire and started looking to hire TFWs. They just became the choice for labour market supply.”

LiUNA continues studying the impacts of labour market distortion particularly the suppression of wages and displacement of Canadian workers. The union wants to see an avenue created so that TFWs may be granted full Canadian citizenship. However, with the TFWP and IMP, “There is no pathway for them to become a permanent resident or citizen,” Richard says.

Creating undocumented workers “is one of the most serious negative impacts of the programs on the Canadian labour market,” continues Richard.

“It leads to lower training dollars in the industry, because why do we have to train a whole new generation of workers when companies are allowed to bring in foreign workers from elsewhere?” Mark asks. Also affected are Indigenous groups and women who would welcome a prominent role in construction but are seeing few opportunities. “Bottom line is there’s really a wage shortage in the construction industry, not a labour shortage.”

Some restrictions were placed on the IMP by the Conservatives under public pressure. The Liberals have undone some of the stipulations related to enforcement and control of the program, and according to Richard, it appears that they “are bowing to the pressure of the employers who like the program. They haven’t shown us, at least to this point, that they’ve really done anything to crack down, and in fact, they seem to be following in the footsteps of the Conservatives.” Even to discuss the IMP is difficult for the Liberals who, “act as if it doesn’t even exist,” continues Richard.

Mark relates that LiUNA has suggested an inquiry about the impacts of the TFWP and IMP on the construction industry. In 2016, because of LiUNA’s influence, the federal labour minister, Mary Ann Mihychuk had agreed to a study of the programs and their impact on the construction labour force. But in 2017, Mihychuk was replaced by Patty Hajdu who has not indicated whether or not she is open to such a study.

In 2018, the federal government, in conjunction with Build Force Canada, produced a report that only discussed the TFWP briefly. “It doesn’t even mention the IMP which is the bigger issue.” Also in 2018, the federal government will initiate random audits, and although there were some initiatives taken, there was never a proper inquiry. “We’re going to continue to push it,” Jim says.

One of the studies Richard prepared for LiUNA was about the TFWP’s Employer Liaison Service, a two-year pilot program (2017-2019) in Alberta being conducted between the provincial and federal governments. In part, the study examines the connection between the construction labour force, unemployment, and TFWs during a time of recession in the province. Included in the Employer Liaison Service was a ‘refusal list’ in which, “Employers would no longer be allowed to bring in foreign workers,” says Richard.

LiUNA looked at the previous two years to assess how many TFWs were coming to Alberta into occupations that are now restricted and discovered that more migrant workers were being employed in construction occupations not on the refusal list. “I think we’re in support of tracking and where necessary, restricting foreign workers so local people can take advantage of those opportunities,” explains Richard, who does not believe the program will be successful. “It’s not operating in the way that it was hoped or promised in terms of screening out workers who had displaced Canadians because the list is not comprehensive enough.”

Mark concurs. “It’s not holistic enough. On top of that, it doesn’t include the IMP. It only covers the workers that come in through the TFWP.” There is some discussion, however, about getting IMP numbers for those coming into Alberta and Richard believes that there is a need for country-wide data of the numbers of migrant workers and which construction trades they are employed.

LiUNA has thirteen recommendations including:
• Have a full inquiry
• Create a pathway to Canadian citizenship
• Do not apply the IMP to the construction industry
• Have the government establish a proper prevailing wage rate
• Have both provincial and federal government enforcement oversight and penalties where necessary

“We see all kinds of abuse in the system,” says Jim. “It really is the opposite of what Canada is about. Canada was built by immigrants coming here with full rights and full opportunities. They were able to bring their families, raise their families and become part of our country, vote, participate and to build their lives here.”

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